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EU court rules Commission authorisation of lead chromate pigments was illegal

(12.03.2019)


Background:
In July 2016 the REACH committee granted the authorization of non-consumer use of two lead pigments, namely lead sulfochromate yellow and lead chromate molybdate sulfate red for six different uses. The application, submitted by Canadian company Dominion Colour Corporation (DCC), have been an ongoing story for several years. The lead pigments were authorised for use in coatings and plastics aimed for industry use for seven years. The exception was for lead pigments in road markings, which was authorised to use for four years.


Photo: Yellow road marking (Copyright: Sherman Tan CC BY 2.0)

Since lead is a neurotoxin that can harm the nervous system and hexavalent chromium is a carcinogen, this permission was questioned already at that time. Frida Hök, ChemSec Policy Advisor argued that the decision totally undermines the whole REACH process and pronounced to challenge this authorisation.

In  October 2016, ClientEarth, EEB, ChemSec and IPEN requested the Commission reconsider this authorisation by arguing that the EU executive had "clear evidence" showing the availability of alternatives but still granted the authorisation. The European Commission refused to review the authorisation, forcing the coalition to bring the case before the EU courts.

Already in November 2016, Sweden took the Commission to the EU Court, arguing that "it was known to the Commission that the use of lead chromates had been almost entirely phased out in several member states and that plenty of alternatives to lead chromates are available".


EU court ruling

Last week on March 7 the EU General Court has ruled that a European Commission decision to allow a company to sell pigments for paints containing lead chromates in the EU was illegal. The ruling is a victory for the Swedish government, which brought the case before the EU courts. But it is a slap in the face for the European Commission, which has a 100 percent track record of approving the use of supposedly banned chemicals when requested by companies.

The ruling means that, effective immediately, DCC can no longer sell these pigments on the EU market. The Court dismissed the Commission's request for the effects of its authorisation decision to be maintained until it can conduct a review and ordered it to pay its own costs and those incurred by Sweden, which brought the case.

Additionally, the ruling contains several guiding principles that are of very high interest to anyone interested in chemicals policy, for example:

  • The burden to prove that the alternatives are not available is on the company applying for the authorisation;
  • The Commission does not have the right to grant authorisation if, at the date of adoption, there are still uncertainties (that are not negligible) about the availability of safer alternatives;
  • The Commission mustn’t necessarily follow the advice coming from the scientific committees involved in the process; the Commission is responsible for checking the coherence, relevance and accuracy of the opinions from the scientific committees;
  • The Commission has to verify a sufficient amount of information that is substantial and reliable to be able to conclude that no suitable alternatives are available.

The Swedish environment ministry said that "the judgment strengthens the principle that particularly hazardous substances should be phased out when there are suitable alternatives. It is of great importance for future licensing decisions in the area of ​​chemicals."

IPEN’s Global Lead Paint Elimination Campaign Manager Dr. Sara Brosché said, “Lead paint is a hazardous, obsolete technology, yet lead paint is still a major source of childhood and occupational lead exposure globally. This ruling is a big win for human health and the environment.”

Elise Vitali, policy officer on chemicals for the EEB said: “This authorisation was a farce and exposes just how permissive the EU is to conservative business interests at the expense of our health and environment. With elections on the horizon and populism on the rise, EU chemical controls are badly in need of a fresh lick of paint."

ClientEarth lawyer Alice Bernard said: “This ruling sends a clear message to decision-makers: the Commission and national governments that sided with it, in this case, must stop trying to bend chemical law to protect industry laggards, rather than putting public health first. Rules must be applied to protect public health and the environment, as well as companies investing in safer alternative solutions.”

Bernard added: “This is a huge victory for the environment and for public health. It’s also a victory for the companies who had invested in safer solutions decades ago that the Commission’s authorisation had effectively disadvantaged. The Tribunal clearly reminded the Commission and the supportive member states that, accordingly to the law, the burden to prove suitable alternatives are not available lies with the company applying for authorisation. Awarding this authorisation on the condition that the company provided the necessary evidence at a later date was not only too lax but illegal.”

“This ruling is especially important as it shows that the Commission has been handing out wrongful authorisations. On a personal level, the ruling also feels a bit like a relief as many of the guiding decisions is very much in line with what ChemSec has been saying for years. We now hope that this will set a new precedent for how REACH authorisations should be handled in the future”, says Frida Hök, senior policy advisor at ChemSec.

In parallel, a coalition of environmental organisations including ClientEarth, as well as the European Environmental Bureau (EEB), the International Chemical Secretariat (ChemSec) and International POPs Elimination Network (IPEN) brought a case against the Commission for refusing to review the same authorisation. This case is still pending.



Related information

IPEN (12 July 2017) Press Release: Commission to face EU Court over authorisation of    lead chromate in paint   
ECHA: Authorisation list





last time modified: March 12, 2019









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